The Dispatch Podcast - Understanding Florida's 'Don't Say Gay' Bill

Episode Date: March 30, 2022

Florida Gov. Ron DeSantis signed House Bill 1557 into law on Monday. The Parental Rights in Education Act—or “Don’t Say Gay” bill, as its detractors call it—is one of the most contentious and least understood pieces of legislation in recent memory. On today’s podcast, Declan is joined by Gabriel Malor, an appellate litigator based in Virginia, and Eugene Volokh, a law professor at UCLA, for a thoughtful conversation that dives into the bill text and elucidates what the law does—and doesn’t—do. Plus: What are the benefits and drawbacks of writing legislation with vague terminology? And why is Florida passing this bill now? Are the political right and left swapping sides on the exercise of government power?   Show Notes: -TMD: “Breaking Down the So-Called ‘Don’t Say Gay’ Bill” Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the 200th episode of the Dispatch podcast. I'm not your host, Sarah Isger, although her voice may sound closer to mine as she recovers from COVID-19. This is Declan Garvey, editor of the Morning Dispatch, and today we're going to talk about Florida House Bill 1557, the Parental Rights in Education Act. When I say parental rights in education act, there's a good chance you understandably don't know what I'm referring to, because the bill in question has almost exclusively been referred to by a nickname crafted by opposing activists, don't say gay. After several weeks of debate in the Florida legislature and lots of media and corporate backlash, Florida Governor Ron DeSantis signed the bill into law on Monday.

It's arguably one of the most controversial and least understood pieces of legislation in recent memory. In today's episode, I'll be joined by two legal experts with slightly different perspectives on the law. Gabriel Mallor, an appellate litigator based in Virginia, and Eugene Volick, a law professor at UCLA who focuses on the First Amendment. I wrote about the law in our morning dispatch newsletter earlier this week, and they were both instrumental in helping me understand the ins and outs of what the act does and doesn't do. To set a baseline for our conversation and allow us to go deeper in the time allotted, I'll tick through the basics. HB. 1557 was framed by its sponsors as a measure that gives parents in Florida more control. over the public school education their young children receive on certain complex and hot-button social topics. It prohibits classroom instruction on sexual orientation and gender identity

for students in kindergarten through third grade and for students in all grades if that instruction is not done in a, quote, manner that is not age-appropriate or developmentally appropriate in accordance with state standards. There are other provisions we'll get into with Gabe and Professor Volick, but that's the big one, and the rhetoric around it has gotten incredibly heated. DeSantis has argued the law is necessary to protect five-year-olds from, quote, sexualization, and as press secretary said anyone who opposes the measure is, quote, probably a groomer. Critics claim it will forbid certain students and teachers from acknowledging even the existence of their loved ones, and is the beginning of a dangerous new censorship regime

in the Sunshine State. Who's right? Is anyone right? My hope is that this conversation explores the various facets of the bill and provides thoughtful, differing of perspective, that will allow you to come away more informed about the strengths and limitations of this kind of legislation. And if you stick around until the end, we'll get into the rapidly changing politics of it all. Eugene, Gabe, thank you so much for joining us on the Dispatch podcast this week. I want to kick off our conversation by talking about what happens now that, you know, Governor DeSantis has signed HB 1557 into law. It goes into effect July 1st, which means it, you know, may capture the tail end of some summer

school classes, but really we're talking about next school year. So some more politically involved parents and potentially trial lawyers are going to be champing at the bit to put the law's enforcement mechanism. to the test. Gabe, I'll start with you. What do you think this will actually look like in practice? I believe that the term you used the other day was lawsuit factory. I did say that. I was referring to the law's cause of action for parents who feel that the schools are not adequately addressing their concerns that school practice or policy may be violating this new law. I think that's actually where you ask what happens next. The very next thing that's going to happen is that the school

districts are going to have to develop procedures and practices to implement the various provisions of the law, not just the K-3 prohibition on classroom instruction, but also the grades 4-12 prohibition on classroom instruction where not age-appropriate. That's one of the keystones of the bill that I think really needs to be more well-defined is what is age-appropriate. I think that's something that different parents are going to disagree about, and the fact that there's a mandatory, excuse me, a parental cause of action with mandatory attorney fees attached suggest to me that we will be seeing plenty of lawsuits as parents dispute what their children

are being told whether or not is it, is it age appropriate at grade six, is it age appropriate at grade seven, grade eight, so on and so forth. I think that's really where we're going to see the schools have to address that first, and that's probably what's going to happen over the summer. Like you said, the law goes into effect on July 1st. They're going to want to have some of those policies in place when the new school year starts in the fall. Right, right. And Eugene, you know, that's certainly what Gabe described as a reality that opponents of the bill have been warning about for the past, you know, several weeks as this, you know,

has been making its way through the Florida legislature. A few progressive advocacy groups have already pledged that they're going to challenge it in court. They're establishing legal defense funds for students who feel that they, been harmed by the contents of this bill. You believe that those challenges are probably unlikely to win out that the law doesn't violate the First Amendment. How did you arrive at that conclusion? Sure. So public schools are branches of the government, essentially. They're basically subdivisions, the school districts are of the state, political subdivisions

of the state. And at least as far as the First Amendment goes, I'm going to set aside whether there's some weird state constitutional rules in Florida, which I can't speak to. But at least in so far as the federal constitution goes, a public school is entirely under control of the state legislature, the legislature that authorizes school districts that funds schools. And it can set forth the curriculum, right? The state could say every school shall teach algebra to everybody. Well, it could do that. That's not a First Amendment violation of teachers who say we don't want to teach algebra. Alternatively, a school could say no school shall teach multivariable calculus because we think this is a poor use of state resources. Instead, you should use more

basic math, or teach more basic math. Again, you know, that's not anybody's First Amendment. everybody's First Amendment rights. It's the state setting forth the curriculum for schools that are run by the state. Someone's got to decide what is taught in public schools. It could be each teacher. It could be the principal. It could be the local school board. It could be some state executive agency or it could be the state legislature. The federal constitution doesn't speak to what that level of decision making should be. No, you might say as a practical matter, maybe it's better to leave this decision to individual teachers, or maybe not teach individual teacher, but to each principal and school board because maybe different

localities will have different views on the subject. But you could also have arguments that it should be left to the state legislature because ultimately it is the one that is in charge of the education system in the state. Again, helps fund it and can help. said guidelines for it. So I think they're interesting practical questions about what makes sense, but I don't think there are any real First Amendment questions or other federal constitutional questions. Right, right. And, you know, some of the other lawsuits that we might see crop up in the next, you know, several months might have to do with anti-discrimination statutes or Title IX violations. Do you think that there's any validity

to those arguments as well? Well, discrimination against whom? Certainly, If a school were to treat a child worse because the child is male or female or gay or straight, that might very well lead to possible lawsuits. But this statute doesn't call for that. The statute provides essentially constraint on what may or may not be taught. Nothing in Title IX says there has to be sex education in second grade. Nothing in Title IX speaks to the curriculum of schools more broadly. So I don't see any discrimination claim broad based in the statute.

To be sure, it may be that some schools are discriminating against students for a variety of reasons, and that should be punished and should be stopped. But this statute does not do anything that would violate Title IX or any other federal law that I know of. Got it, got it. And Gabe, I want to let you respond to that. I know also when we spoke the other day, you mentioned that some opponents of the law might try to sue on the grounds that it's too vague, that it doesn't, you know, exactly specify to teachers and to courts what is and isn't legal under its provisions.

They might, you know, cite language about content needing to be, quote, age appropriate or developmentally appropriate. They could argue the difference between discussion and instruction isn't all that clear. Do you think that there will be lawsuits along those lines, and do you think that they would go anywhere? I'm sure that there will be lawsuits along those lines, and it remains to be seen what Florida is going to do. Florida, they are going to have first crack at defining their own law. So people who want to sue on federal statutes or in federal court are going to run up against that challenge first. you know, if Florida Department of Education interprets this narrowly or at least very clearly

makes clear, well, then no, you're not going to see any voidness issues. And I agree with the professor that I don't really see any First Amendment issues here. And as far as Title IX goes, those are going to be very fact-specific. It's not going to be something that's going to just, we can say, oh, the whole law must fail. We're going to see something where a particular school employee or a particular child in the school system had some, you know, discrimination that they say is founded in this law, or at least in the implementation of this law. But those are going to be very fact-specific circumstances.

That's not going to be like a broad, you know, strike the whole thing down situation. So I should say, by the way, I agree entirely that much will turn on how things are implemented. You can imagine this law. You can imagine any law being implemented badly. I will say that vagueness concerns, I think, are considerably less when the government is regulating ultimately what government subdivisions and what government employees do, right? If the government were to say, you know, it's a crime to be rude to people, well, it's

clearly unconstitutionally big. On the other hand, if a government were to say, no public employee shall be rude to customers, well, that's probably already the rule in many places. And we don't demand very careful definition. Well, that means you cannot say, the following things, and you cannot use this particular tone of voice, and you cannot use, you cannot say things that are sarcastic in the following way, right? When it comes to the government controlling its own actions, including the actions of its employees, then I think it has a good deal of flexibility. So if you look at the statute, it says, the operative provision, it says classroom instruction by school personnel or third parties on sexual orientation or gender identity,

that's pretty clear. I mean, there may be some uncertainty as to what's classroom instruction and what's just conversation, but, you know, that's not vague, that vague, as legal rules go, may not incur in kindergarten through grade three, that's pretty clear, or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards. So, indeed, I entirely agree the first question is going to be what the department of education does here, especially with an eye towards state standards, right? If it sets forth some state standards that just are completely unclear, well, at the very least, I'm not sure to make it unconstitutionally vague, but at the very least, that would be a very bad idea

because that would be productive of a lot of unnecessary litigation. On the other hand, if it says, well, here are the state standards, which is starting in grade six, we expect the following kind of coverage of sex education, starting in grade nine, we expect the following kind of coverage of sex education. That may end up being really quite clear and may end up not producing even a lot of lawsuits by parents. Remember, parents can get attorney fees and damages if they win. If they lose, they don't. And the attorney that they turn to might very well say, you know, you've got such a weak case that unless you're willing to pay for it out of pocket, I'm not going to expect to win the attorney fees when it's not likely that I'll win the case at all.

So, indeed, much depends on just how the standards are defined. And then much depends on whether the schools actually really try to comply with the state standards or try to evade them. Of course, the more they try to evade them, perhaps for good reason, perhaps for good educational reason. But the more they try to evade whatever state standards are created, of course, the more litigation they'll be. Declan, can I just respond to two things there I want to make really clear? first of all, this isn't a sex education bill. Certainly that would have been, I think, not very controversial at all. If Florida had come out and said, look, no sex education for kids K through 3, or maybe even K through 5.

But that's not what this bill did. This bill prohibits classroom instruction on sexual orientation or gender identity. It drilled down very specifically on that category, which isn't sex education. We're talking about, for example, Heather has two mommies, a children's book for children ages 5 and up. In other words, kindergarten age, first grade age, I don't believe under this law that a teacher could read the children, Heather has two mommies. It would be a classroom instruction about sexual orientation

merely to reveal to these children the existence of gay married lesbians, which, again, I know people have objected to us calling it a don't say gay law, but I mean, I don't know how else you could describe it. You can't read Heather who has two mommies because the kids might figure out that, wait, some people have two mommies, some people have a mommy and daddy, and some people have two daddies and some people have only one mommy or some people have only one. I mean, right, the idea that it's not, it's a sexual education bill is just not, that's not founded.

So I should say, I appreciate the correction. I said a sex education that was not quite correct. So let's say sexual orientation education. And by the way, one could say that, you know, sexual orientation and gender identity are important facets of light. And we should be teaching them as early in kindergarten where we should be saying, you know, Some people are gay, some people are lesbian, or we don't frame it that way. Some people are in families where there's a mother and a father. Some in families where there are two mothers, some two fathers, some only one mother, some one father.

So, you know, as a policy matter, one could say that maybe it's a good idea to introduce that early. But if the, just to correct what I said, if the state says, we're not going to have sexual orientation instruction. orientation education, or not going to have classroom instruction on social, sexual orientation, or gender identity until, say, sixth grade, and if so, here is how it would go forward. Then in that case, I don't think there's going to be a lot of vagueness and probably not a lot of litigation so long as those state standards are complied. Right. That's the other thing I wanted to address about what you said, Professor, and that was this law actually does have mandatory fee awards for the prevailing parent, which means if they win. Right. But my point is,

if the rules are clear and if they're complied with by schools, then a lot of parents aren't going to sue because they and their lawyers will realize they're not likely to win. On the other hand, if the standards are vague, then I totally agree there'll be a lot of extra litigation. And if the standards are clear but not complied with, there's going to be a lot of extra litigation as well. Sure. Right. And I'm curious that, and this question can be for either of you, How the law would think about the, you know, that gave that book you mentioned, Heather has two mommies. It very well could be in violation of this law because it is explicitly revealing that there are some families where there are two women at the head of the household. Is that a heteronormative way of looking at this in that, you know, there are plenty of children's books where the main characters are a mom and a dad?

and that would not necessarily be in violation of this law in the way that we're currently thinking about it, or would it? Is any book that talks about, you know, a marriage or head of household family situation going to be, could there be kind of counter lawsuits filed in that regard, that that is also in violation of the law? Well, I'm glad you brought that up because I wanted to talk about an example from a few years ago in Texas where a teacher, the school teachers were instructed at the beginning of the school year to say, hey, you should do a little presentation, welcome back to school and do a poster

board and have some photos and some, you know, decorations just saying what she did over the summer break. And an art teacher, she made one of these poster boards. And one of the things on her was a, I think it actually was a slide projector, but anyways, one of the slides she showed or one of the pictures she had was of her and her fiancé, her female fiancé. And a week later, the school suspended her because the parent complaint, and the basis of the parents' complaint was that showing the photograph of her and her female lover was, quote-unquote, normalizing the homosexual agenda. And she had to sue to get her job back.

She was suspended with pay, but she didn't actually get back in the classroom. She had to sue saying, oh, look, if I had posted a picture of a man, as my fiancé, it would have been no problem at all. And that is something that we see all the time when we talk about these sorts of sexual orientation issues. you know, when two gay people show up, for some reason, that's about sex, even though it's just the mere presence of two gay people. Whereas like you said, when you see, oh, just a man and a woman, well, that's just a man and a woman going about their day. We get this phrase, this very intentional phrase, you know, they shove it down our throats said about gay people all the time for the crime of existing in public, which is something that we don't see, for example, when, oh, it's a book and there's a little girl that she's got a mom and a dad.

We don't think about sex. We don't think about that as sex. We don't even think of that as sexual orientation education, right? We just think, oh, it's just a book. And, you know, they go on about their day. But for some reason, when you introduce gay characters into these books, suddenly they're gay books and they're about gay sex, even when they're not, even when they're children's books.

For some reason, we get accused of, quote, unquote, normalizing the homosexual agenda. So that's one of the reasons. I mean, because this has happened so often, that's why I'm firmly in the camp, I expect we'll see plenty of lawsuits from this, plenty of parents who do not want their children to hear about the existence of gay people, even in grades K through 12.

So I think that it's important to look at the exact language of the statute in part because I think that's what courts, which ultimately will hear some of those lawsuits, and we'll send a signal about whether those lawsuits are likely to win or not, what they're going to do. And they're going to start with classroom instruction on sexual orientation. So I think there, the question is whether this is an attempt to instruct people on sexual orientation, instruct students on sexual orientation, or whether it's something where it's just sort of mentioned in passing. Let's just take an example. Imagine that in a current events class, there is a story about a prominent,

prominent, say, musician who happens to be gay or lesbian. And it's sort of mentioned in passing. that if the underlying instructionist, here are the stories in the news, and there's a controversy involving this person. It will be viewed as instruction on sexual orientation. On the other hand, it is a deliberate attempt to teach children about matters related to sexual orientation or gender identity, then yes, this represents the sense of the legislature that this shouldn't be done until the fourth grade. And when it done fourth grade or later, it should be done in accordance with state standards rather than just whatever the school teacher thinks is proper.

We might think about it in other situations. Imagine, for example, that this was classroom instruction on, let's say, drugs or on drug abuse. Then it seems to me if there is a whole class session that is about, or you know, a portion of a class session. It's deliberately about drug abuse. That would be classroom instruction and drug abuse. On the other hand, if there is, for example, a novel in which one of the characters happens to be abusing drugs, it's not an attempt to kind of teach students how to avoid drug abuse. It just happens to be a novel where that's an issue. I wish I had examples off the top of my head, but don't come to mind. Then in that case, that's something that I think

would not be covered. Or I'll give you one other example that I do think comes to mind. How about classroom instruction on sex before, on sex before age 18, let's say, on sex among minors? Well, you know, there are

classes that I think would be covered. But teaching Romeo and Juliet, for example, even though there's a marriage of what I understand to be very young people there, that I think, probably wouldn't be treated as classroom instruction on underage sex. In any event, that's the kind of decision that courts make pretty often in interpreting statutes. Right, right. And

I mean, it definitely will be interesting to see how the courts interpret all of these, all of these kind of, you know, things that were left to them to decide in the coming months here. Not long ago, I saw someone go through a sudden loss, and it was a stark reminder of how quick life can change and why protecting the people you love is so important. Knowing you can take steps to help protect your loved ones and give them that extra layer of security brings real peace of mind. The truth is the consequences of not having life insurance can be serious. That kind of financial strain on top of everything else is why life insurance indeed matters. Ethos is an online that makes getting life insurance fast and easy to protect your family's future in minutes, not

months. Ethos keeps it simple. It's 100% online, no medical exam, just a few health question. You can get a quote in as little as 10 minutes, same-day coverage, and policies starting at about two bucks a day, build monthly, with options up to $3 million in coverage. With a 4.8 out of five-star rating on trust pilot and thousands of families already applying through Ethos. It builds trust. Protect your family with life insurance from Ethos. Get your free quote at ethos.com slash dispatch. That's ETHOS.com slash dispatch. Application times may vary. Rates. may vary. I want to shift gears a little bit to, you know, there's been a lot of inaccurate discussion of this law from partisans on both sides of the aisle. It does not, you know, in its final

form, formally prohibit students from saying the word gay or talking about their non-heterosexual family members like opponents of it have claimed. It also doesn't just apply to children in kindergarten through third grade. Like some of its supporters say, you know, the, the, the, the, the polling that we do have on the bill thus far is is a mixed bag depending on how the question is asked some surveys show majority support for it some majority opposition but it does seem like there's room for you know some sort of compromised legislation and Gabe I think you referenced this earlier that that basically says you know look official sanctioned public school curriculum for children under the age of I don't know eight you can have that debate on on the specific age

should not include anything having to do with sex, sexuality, gender identity, et cetera. I think it's reasonable that at that age, many parents would rather be the ones to talk to their children about those issues themselves, not a teacher that they may not know or that isn't necessarily trained for those types of conversations. Combing through the Florida legislature website, bipartisan groups of lawmakers did actually propose amendments to this law that would essentially have done that that would have, you know, changed the word from instruction to curriculum, would have, you know, explicitly defined age ranges and what those age appropriate things encapsulated. Do you think there was a way that the legislature could accomplish the goals

that it wanted to accomplish with this legislation, address some of the concerns that parents may have without necessarily creating new concerns or unintended consequences that that we might see play out in the coming months. Well, I mean, of course there's a way for them to do something different. I can only speak to what they did. I did, you know, the final version of this law is in better shape than the original version. The original version banned classroom discussion, which seems to me a very broad term. And the final version tightened it up somewhat to go to classroom instruction, which I think,

you know, more focus on what the teacher's doing, not just what the teachers and students are doing. So, I mean, the final version isn't as bad as the original version. I still don't like the final version for the reasons I've stated. And sure, you know, if the Florida legislature wanted to take another crack at it and tightened up even more, I mean, that'd be great. But I got to work with the law that I've got here. Yeah. And do you think that, you know, like we've seen with SB8 and Texas spawning a bunch of

copycats in other states like we've seen, you know, with various heartbeat bills and things like that. There probably will be, you know, other red states that try to, you know, enact something like this in the future based on, you know, what the response that, that it's gotten and kind of the, frankly, the political boost that it's given Ron DeSantis in kind of a, the shadow 2024 primary. But so what, what lessons do you think that other legislatures should learn from this example if if they are going to pursue something similar, try and address those concerns and what kind of concrete changes to the bill could, you know, accomplish many of the same things without some of the downsides. Well, obviously, you know, like I said before, if we want to ban sexual education

up to a certain grade, you know, K through three, K through five, I don't, you know, we can set that number. One of the main things that I hear from people over and over is that this is a sexual education bill. And I think in good faith, they don't actually know what it does. So I would want proponents of these bills to be very explicit about what they're doing. And same thing, we see so often people just refer to it as a ban on K through three instruction, which it's obviously not by its own text. The other provision that most that concerns me is the parental notification trigger. This law contains a provision that when there is a change in a student services, or monitoring related to the student's mental, emotional, or physical health,

or well-being, the parents have to be notified. And I'm concerned, this is the one where, in mid-February, actually, there was a really sharp debate about this, where the opponents of the bill said, oh, my gosh, this is an outing provision. And the supporters said, no, no, we just, you know, we want to know when you send our children to the school psychiatrist. I think that provision is problematic, mainly because when a student comes to, say, a student in sixth or seventh grade, comes to a teacher and says, hey,

teach. It's a male student says, hey, teacher, I think I'm, I think I might like boys. I'm really struggling with this. I don't know what to do. I don't want to talk to my parents. They're very opposed to gay people. I don't really know what to do. Well, now the teacher's in two problems. First of all, because if she responds with any sort of instruction, it has to be age appropriate. She's got that to worry about. But then if he says, hey, can you refer me to somebody? And she sends them to the school counselor or the school psychiatrist. Well, that sounds like a change in the student services or monitoring to me, which would then trigger the parental notification law. So I, you know, I think that one really bothers me. Again, we'll wait to see how

the schools interpret this, whether those teachers manage to find ways to address it without triggering, you know, a change in the student services or monitoring. That's the key phrase that triggers the parental notification. And, you know, some students, it's not going to be a thing. This, oh, student comes out, great, nobody cares. It's the ones that are struggling that you sort of wonder, okay, the student says he doesn't want to tell mom and dad, and you refer to him to the school counselor. Well, now we've got a real kind of a conundrum on our hands. Right, right. And Eugene, the law itself contains a carve-out with that automatic trigger for instances where, quote, a reasonably prudent person might conclude that disclosure would result in parental abuse,

abandonment, or neglect. From a legal perspective, what is the barrier to making that point? kind of how would a student, how might that conversation play out if a student is generally concerned about the ramifications of coming out to his or her parents? Well, you know, it's hard to know exactly how it would play out in every situation in part because I'm not an expert on this particular corner of kind of parental rights and student student rights and law and educational privacy rules and such. But just stepping back of it, parents have the primary responsibility for keeping their children safe.

And if there is something that's happening that's affecting my child's mental or emotional well-being, as a general matter, it's really important for me to know this. I mean, what if I take the child to my doctor and the doctor says, you know, seems to be something wrong with him. Has there anything wrong with his mental or emotional well-being? I say, no, not as far as I know. Turns out, turns out that there have been some real problems that have been flagged at school

that I just haven't been notified of because they're concerned that I might misreact. That could be really bad for the child and really bad for my ability to discharge my responsibility to the child, which is generally speaking requires me to know everything that's happening with the child. Now, to be sure, there are some situations where you can imagine something where, look, you know, if the parents learn something about the child, then they'll react badly. They might beat the child. They might kick him out of the house. Certainly there are such horror stories. But as a general matter, it seems to me that parents need to know as much as possible about what's been happening to their children, especially the kind of thing that really rises to the level of mental

emotional or physical health or well-being. How it would actually play out with regard to the exception to the reasonably prudent person, again, that's something I can't speak to with confidence. But I do think it's important that as a general matter, parents have more information rather than less about what's happening to their child, something that, I mean, again, imagine there's a flare-up. Imagine that a child has real depression, let's say, are real problems. and the school, for whatever reason, is afraid of reporting into the parents because perhaps it's related to the child struggling with gender identity or sexual orientation. And then the parents can't get the child the help that they might be able to get because they haven't been

informed. Right. Right. And that kind of gets to where I want to take this conversation next. And that's why this bill is being passed now, you know, what the political environment that that's kind of being thrust into. And that's one where, especially over the past, you know, two years, two plus years of the pandemic, it's become parents' rights and parents kind of responsibilities

versus the state's responsibilities in the raising of children have really kind of come under the microscope and Republicans in particular have made that a plank of their platform heading into 2022, that they are the party of parents, they are, the party that, you know, wants to, wants parents to be able to have more control over the upbringing of their child. And so we're seeing kind of this, this play out in a way that I think you both made very good points there that there are certain instances where, you know,

letting the parents know something about their child before the child is ready for them to know it. It could be damaging. But at the same time, parents do have a right. right to raise their own child and make decisions on their behalf in most instances. And so kind of how do you, there's a shifting sense. I know, Gabe, you mentioned to me when we talked about this on Monday that, you know, conservatives didn't used to be the ones who were advocating for kind of this more litigious society and, you know, trial lawyers and whatnot. are you seeing a shift in kind of the politics of, you know, where the state's responsibility

stops, where the parents' responsibility kicks in, and kind of how free speech fits into all of that? Well, Declan, I think you put your finger on it when you mentioned the pandemic. I think the pandemic accelerated a sense that we already saw with the Trump presidency, and that is that for conservatives and people on the right, there is a sense that that The institutions have failed them. And that's why I think we see a lot more of this. You know, we need mechanisms for self-help.

How can I, you know, we saw that early in the pandemic, right? The various school boards and teachers unions, you know, frankly, made huge missteps in responding to the pandemic and not responding to the concerns of parents. You know, I can't remember how many times I saw press releases, which either suggested outright or strongly implied that the parents needed to shut up and let the school board handle this. that was the thinking.

And parents, of course, responded very negatively to that. I'm, of course, from Virginia, or living in Virginia anyways. Terry McCullough made huge missteps on that. And, of course, now we have Governor Yonkin running the state. And a lot of that was the furor over the treatment of parents by schools, of just outright dismissing them and their concerns. And as that, you know, that has increased over time all the way through the Trump presidency. And the pandemic, I think, sent it to super-accelerated.

And there's a real sense now that, to me, at least, as far as the sexual orientation and gender identity issues, pivot arising, that the post-Obergafel d'aunt is over. Conservatives are now going to push back. That's why we see so many of these trans stories in the news. We see these new trans laws coming up in states all across the West. And, of course, Florida has now passed this bill. Right, right. And Eugene, do you want to respond to that? Sure. So first of all, I agree with much of what has been said. But let's just step back and talk about the litigiousness and the prospect of more lawsuits and lawyering.

Generally speaking, in our system, I'm told it's different than Europe, but in our system, when there are rights, they're usually enforced through some degree of participation by. lawyers. It could be through administrative process, often through civil litigation. And that's true whether these are rights to equal treatment and under employment law or public accommodations law. It's true. Under copyright law, trademark law, all sorts of things. If you have rights against other people or against the government, generally speaking, that involves at least the prospect of litigation, although often people just comply with the law to avoid litigation. On the other hand, there are some situations where we don't have rights, but we just sort of trust the government to do smart things. By and large, for example, we don't have rights to a particular curriculum, like

rights to have probability and statistics taught in high school. Some high schools do that. Some don't. That's usually not done through lawyering. It's usually done through decision making by principals and by school boards with input from the public. So I do agree there's been something of a change in that it used to be that conservatives tended to be relatively confident of the results of the democratic process as filtered through legislatures but then eventually empowering executive agencies. Police departments, school boards, and various other entities. I shouldn't say school boards, school boards are a little different, but let's say school systems and other entities.

And I think what has happened is a lot of conservatives have joined what another was an occasional coalition partner of their libertarians, but also in some measure on this, liberals, in being distrustful of government. It used to be that liberals tend to be more distrustful of government than conservatives. Now I think lots of conservatives aren't distrustful of government. Maybe too much so, it's possible, or maybe understandably so. So when you distrust the government, when you don't trust your local school system, when you don't trust your local principles and teachers, and one solution might be to go to the part of the government that is really more responsive to you, at least at this point, which is the legislature, and then have them create legal rules that have to be enforced by lawyers. So, yeah, I do think that a lot of conservatives think of many parts of the government, especially kind of the professionalized executive.

branches as basically adversaries in some respects in the culture wars, and they no longer trust their judgment. And the consequence of that may be more regulation by the legislature of those executive agencies and then perhaps more litigation as a result. Right, right. And I am loathe to engage in media criticism most of the time. I think it's generally not a good use of time. But I do think that, you know, when, when Republican legislatures do things like what Florida did, and, you know, Ron DeSantis signed a similar bill, you know, that was subsequently struck down targeting tech companies. There's, you know, the SB8 in Texas, everything like that. It gets framed as, you know, Republicans waging culture wars for political gain and drumming up their base.

And then if you look at it from a conservative perspective, I think that you can argue pretty persuasively that, you know, progressives are waging culture wars as well. And this is conservatives responding. And then, you know, progressives say that they need to respond to their conservative culture wars. And it kind of is a tit for tat. But it's interesting that it's kind of shifted a little bit in that, you know, progressives primarily are waging these culture wars through non-governmental means, through, you know, the media, through movies and television, through corporate activism and things like that. And it's now the conservatives that are, you know, using the power that they have, which is, Eugene, as you mentioned, the state legislatures,

the governor's mansions, the things like that to push back and to kind of fight back in this, you know, broader culture war. Yeah, I don't think that that's quite right. I think progressives are certainly using the power of the government on their side of the culture wars when they may be entitled to but but that's exactly what's happening right so so there's a case now before the Supreme Court where a web designer didn't want to create I think a website for a for a same-sex wedding and the The result wasn't just a public criticism or a boycott of him. The result was legal action against him.

And now the Supreme Court will decide whether the free speech clause protects the right of web designers, of I suppose, wedding singers, of photographers, or videographers to choose not to do same-sex related, engaging in same-sex wedding-related speech as part of their business. Likewise, a lot of the dispute about transgender athletes in sports, that has to do with schools and with sports and with schools and with sports leagues, I think, operating under pressure from what is perceived as a commands of anti-discrimination law. And when it comes to this particular bill, that's a reaction to what is perceived as teaching in government. run schools, right? It's not just about what some corporation is trying to do or what Facebook is trying to do. It's about what is going on in government run schools. Of course, in a democracy, people are entitled to try to have their ideas about culture as well as about other things implemented

by government institutions and to create statutes that may sometimes impose their will on other people when that is seen as necessary to promote justice and fairness. So I'm not saying there's anything wrong as such, although I may disagree with particular applications, but only is anything wrong as such with progressives using the government to accomplish their ends. It just seems to be quite clear that they are using their government to accomplish their ends. If anything, the situation, the difference might be a little bit in the other direction, although I'm hesitant to, I don't want to overstate it. It is true that these days, a lot of the boycotts really are progressive-based boycotts, that is to say, kind of pressure through the, through a big business and small

business and kind of various other such things. It's not terribly new. I remember, for example, there was a boycott, I think, of Florida orange juice back in the 70s because the spokeswoman for them, Anita Bryant expressed many anti-gayst sentiments. But I do think there's more of that from the progressive left, in part because big business is seen as being kind of more open to the progressive left. It used to be that in fact, big business was a major, major enforcer of relatively conservative cultural norms, where it shy away from things that were seen as alienating kind of conservative traditional cultural mainstream. And I think there's a lot less of that now. This having been said, I'm sure that conservatives would be happy to throw around their weight

with business to the extent they do have some weight and they may have some weight because that too is an important tool that both sides would like to use to the extent they can. I just want to say, I agree with Professor Volok and I would cite the example of Disney right this week, which went from being silent on the bill

to now being very vocally opposed to it in a series of escalating statements, you know, exchanges with the governor's office. And that would be a perfect example of that where this pressure, at least as far as the corporation, you know, corporation culture is coming from the left. They're bringing that pressure now, even though it's belatedly. I mean, part of the anger is that Disney didn't speak up until the bill was a done deal. But I generally agree that we see that. Right.

I mean, my sense is that there are a lot of people with pretty traditionalist cultural views, a lot less than before, to be sure. I mean, a lot of views have changed in this area, but there are a lot of people out there. And I would think that conservatives are trying to find ways of bringing back some of that traditional influence over big business, seeing whether they can organize counter boycotts that will deal with what they perceive are excesses that are against them in the culture wars. So I expect only more and more of this. I think we may for better or worse, I think probably on balance, for worse, be in a situation where kind of boycott and demands for all sorts of pressure, both on businesses and on individuals, are just going to get more and more because people are

using them or to the extent they have the power to it, both sides have some such power as important weapons in the culture wars. Exactly. And I think it's important to point out just from a political perspective, you know, how much This has shifted just within the past five years, half decade. I'm sure you both remember that, you know, there was a huge uproar when Mike Pence as governor of Indiana signed legislation that, you know, allowed businesses to have more autonomy and who they turn away for business. And there was a huge uproar and corporate backlash and, you know, businesses were deciding to pull out of Indiana. and Pence back down. He, you know, he ended up either revoking or not signing that legislation.

There was, you know, the blowback in North Carolina with the transgender bathroom issue where businesses were pulling out of North Carolina and the governor at the time, you know, decided to either revoke the statute or not sign it. Now, the more businesses are getting mad at Republicans and picking fights with them, the better it is, it seems to be, for the political prospects of these governors. You know, Ron DeSantis is relishing his, the ability to go on Fox News every night and talk about how, you know, woke Disney is and how, you know, wrong it is for them to be opposing this legislation. Disney's, you know, if not the largest private employer in Florida, one of and, you know, has had an incredible sway over, over the politics of the state for the

past, you know, 50 years. And DeSantis feels totally comfortable bucking them, you know, bucking their wishes and, you know, kind of even championing his disagreement with that company in a way that, you know, presumably is to set him up for a 2024 presidential run. And so it definitely is fascinating to see, you know, that here in Washington, D.C., the Chamber of Commerce is now donating almost equally to Democrats and Republicans, where as before, you know, that was almost exclusively a Republican favoring organization. There are these real schisms between Republicans in big business, and you see that come out from people like DeSantis. You see Senator Marco Rubio has been making the point that, you know, corporations come around to Republicans every time they want a tax break, but they, you know, they don't support us when we're trying to push for more of these traditional values or push back against some of the cultural orthodoxy of the left.

And so it might scramble some of the politics here over, as you said, over the next five or ten years as we kind of continue to see this schism widened. over time. I really appreciate both of you being here today and taking the time to talk to us. I think that our listeners will really enjoy hearing your perspectives and kind of thinking through the various implications of this law and laws like it that we'll likely see in the future. Thanks so much for being here. You bet, Declan. Thanks for having me. Thanks very much for having me. Great pleasure. With Amex Platinum,

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